What Happen If You Cannot Serve Your Divorce Complaint?
Filing a Divorce Complaint with the New Jersey Family Court is the first step in a divorce proceeding. After you receive the Divorce Complaint with the docket number on it, you must make sure that your spouse, i.e., the Defendant in the divorce proceeding, is given a copy of the Summons, Divorce Complaint, and other required documents. This is called “serving” the Defendant. New Jersey court rules require that service be done in a specific way within a certain time frame. Court rules also require you to show proof that the other party was properly served. The “served date” is very important because the Defendant will have 35 days after he or she has been served to answer the Complaint. Otherwise, you can simply ask the court to enter a default judgment if the Defendant has notice but failed to answer.
Primary Method of Obtaining In Personam Jurisdiction in New Jersey
In New Jersey, the primary method of obtaining in personam jurisdiction over a defendant is by causing the summons and complaint to be personally served within New Jersey. Usually, it is done by a competent individual 14-year-old or older delivering a copy of the summons and complaint to the Defendant personally, by leaving a copy at the Defendant’s dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the Defendant’s behalf.
Usual ways to serve your spouse the Divorce Complaint
Under New Jersey law, your spouse must be personally served via hand delivery with a copy of the divorce paperwork. Unfortunately, you cannot just hand the divorce papers over to your spouse during a casual conversation. It is very important that you serve the other party properly. Generally, you can accomplish service by having a sheriff, a process server, or any other competent adult not having a direct interest in the litigation hand-deliver a copy of the petition to your spouse at home or work.
- To have the Sheriff’s Office deliver your papers: Contact the Sheriff’s Office where you filed your case for instructions. There is a fee for this service. If the Sheriff’s Office delivers your papers, they will send proof to the court, with a copy to you.
- To hire a process service: You can look online to find a process server who will deliver your papers for a fee. You will need the complete the Acknowledgement of Service form and include the receipt from the process server and submit them to the court.
- Alternatively, your spouse may agree to accept service personally or through an attorney. If your spouse agrees to accept service, be sure to obtain a signed acceptance of service for filing with the court. If the attorney accepts service, this is considered the same as giving the papers to your spouse in person. The attorney will accept service and return an acknowledgment of service to you.
What Happen If You Cannot Serve Your Divorce Complaint?
If the above methods of service are unsuccessful after a reasonable and good faith attempt, you can still obtain in personam jurisdiction by Substituted or Constructive Service.
If you seek to serve the complaint through an alternate form of substitute or constructive service, first, you must file an affidavit of diligent inquiry which reflects the efforts actually made to determine the defendant’s location for service of process. J.C. v. M.C., 438 N.J. Super. 325, 103 A.3d 318 (Super. Ct. 2013). The Affidavit of Inquiry should be made by you, your attorney or agent of your attorney, and it should be supported by facts that shows diligent inquiry has been made for the purpose of effecting actual notice.
If the Affidavit of Inquiry shows that despite diligent effort and inquiry personal service cannot be made in accordance with the above mentioned methods, then consistent with due process of law, in personam jurisdiction may be obtained over the defendant by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to a competent individual of the age of 14 or over, addressed to the Defendant’s dwelling house or usual place of abode. See Court Rule 4:4 for more information.
What if the Defendant’s address is unknown?
There are different types of searches that might be helpful in locating a Defendant whose address is unknown to you. Typically, you can do a DMV-MVC search, or a Postal Forwarding search by calling a detective agency. You can also contact the agency for a “Skip Trace”, which is the process of tracking down people who are particularly hard to find. The fee of skip tracing service depends on the complexity and fees and time the skip tracer incurs.
Last but not least, if you do not know where the Defendant is after careful search, you will need to apply to the court for permission to serve the Defendant by publishing a notice in a newspaper that is circulated in the county where the Complaint was filed. You will have to fill out specific forms that is required and it can be complicated.
No matter which form of service you are using, you must keep track of time. You should serve the Complaint as soon as possible because failure to serve the complaint may result in the case being dismissed in accordance with R. 1:13-7. What that means is that the court can dismiss your case if you do not properly serve the Defendant within four months of filing the Complaint or if you do not inform the court about the reasons that you have been unable to serve the defendant. In Hudson County for example, approximately a total of 4500 contested and uncontested divorce cases are filed each year, and many are being administratively dismissed for failure to serve.
Serving the Complaint is very important and sometimes may be difficult. If you need assistance with your divorce case, A.Brown Esq. LLC is happy to step in and help. Please call for a free consultation.